Supreme Court to take up UT admission case

Updated 6:45 am, Monday, October 8, 2012

In the fall of 2008, the University of Texas enrolled 10,335 minority students, not including Asian-Americans. As far as Abigail Fisher was concerned, that was one too many.

Fisher had made good grades in high school - a 3.59 average on a 4.0 scale - posted a score of 1180 on the SAT test and finished as number 82 in a graduating class of 674 at Stephen F. Austin High School in Sugar Land. She figured that was good enough. Then came those dreadful words: "We regret to inform you ..."

Fisher was heartbroken. Her dad went to Texas, and her sister. She bled burnt orange. "I had dreamt of going to UT since the second grade," she said.

This week Fisher may get a little payback. On Wednesday the U.S. Supreme Court will hear oral arguments in the lawsuit she brought against the school that challenges an admissions policy that openly allows for the use of racial preferences. If she's successful - and legal pundits are saying there is a good chance - colleges and universities could henceforth be banned from even considering the racial or ethnic backgrounds of applicants.

"I was taught from the time I was a little girl that any kind of discrimination was wrong," Fisher said in a videotaped interview posted on YouTube by her lawyers, who have asked her to do no press interviews. "For an institution of higher learning to act this way makes no sense to me. What kind of example does this set for others?"

Fisher's collegiate career worked out fine. She went to Louisiana State University in Baton Rouge and received her finance degree earlier this year. She has a job as a financial analyst and a promising future.

But the UT rejection still bothers her. She said she knew of classmates who had a less polished résumé than hers but were Austin-bound anyway, and she had an idea why.

"The only difference between us was the color of our skin," Fisher said.

Current law, established by a Supreme Court ruling in 2003, allows schools to consider race in narrow circumstances to achieve a "critical mass" of minority students. But the high court said the practice cannot continue indefinitely and called on them to work toward a colorblind admission process.

Not colorblind yet

UT says that time has not yet arrived.

"Certainly all aspire for a colorblind society in which race does not matter - and need not be considered to ensure a diverse proving ground for the Nation's future leaders," its brief to the court states. "But in Texas, as in America, our highest aspirations are yet unfulfilled. In the end, (Fisher) really is just asking this Court to move the goal posts on higher education in America."

Reverse discrimination, as some call it, has been a public flash point for two generations. Civil rights advocates argue that simply striking down racial barriers would hardly undo the harm inflicted by two centuries as an apartheid state. Conservatives argue that two wrongs don't make a right, that giving a job or school applicant preference because of skin color is at odds with the Constitution, creates ill will and casts a shadow over those who get preferred.

They see a favorable ruling as a potential steppingstone to the elimination of all racial preferences. Fisher's concern was somewhat narrower. She simply felt she was shafted.

"I took a ton of AP classes, I studied hard and did my homework - and I made the honor roll," she said. "I was in extracurricular activities. I played the cello and was in the math club, and I volunteered. I put in the work I thought was necessary to get into UT."

The one thing Fisher did not do, which would have ensured her admission, was graduate in the top 10 percent of her class. By state law, those students are accepted automatically.

The school argued that Fisher was not even close to being admitted, given the stiff competition for a small number of spots. She was so low she was not even considered for the provisional "summer program," which allowed students to take summer courses at UT and then be admitted if they did well. (The provisional admission no longer exists.)

UT also pointed out that 168 minority students who ranked higher in the overall admissions scoring also were denied entry to the summer program. Fisher, according to the school, simply did not measure up; her so-called Academic Index number was too low. The index is made of GPA, SAT score and the strength of her school's curriculum and how she did in certain courses.

But UT did not stop there. In its brief to the Supreme Court, the school said that even if Fisher had ranked as high as she could have on other personal factors - implying that even if race had worked in her favor - she would not have been admitted: The competition was simply too great for her to stand out.

Looking beyond Fisher

However the high court rules, it will be too late to have an effect on Fisher. But that was never the point of the lawsuit. The idea is to stop racial preferences, period.

"UT has a successful race-neutral way of achieving a diverse student body," said Edward Blum, head of Project for Fair Representation, a Washington, D.C.-based group opposed to affirmative action. "That race-neutral method created more diversity than race-based affirmative action had before it. The addition of race-based affirmative action to the top 10 has not brought significant numbers of black and Hispanic students to UT."

UT disagrees, saying that of the 2008 freshman class Fisher sought to join, 20 percent of African-American students and 15 percent of Hispanic students were added via the holistic review process of which race is a factor.

Blum does not dispute the value of a diverse student body, but says many schools accomplish the same thing simply through a detailed consideration of individual factors.